The Paradoxes of National Self-Determination

Some have argued that the right of national self-determination gives every national group the power to decide for itself whether to remain part of an existing state or to secede unilaterally and form its own state. Such a theory underpins the claim that Quebec is entitled to decide on its own whether or not to leave Canada. This paper examines the main philosophical arguments for the theory and finds them one-dimensional and inadequate; they fail to take account of the full range of complex issues arising in actual cases of proposed secession. If the right of national self-determination is understood as involving a right of unilateral secession, it cannot be attributed to national groups across the board. It arises only in specific historical circumstances, usually involving oppression or other forms of grave injustice

Formal Amendment of the Constitution of Canada

Canada\u27s Constitution Act of 1982 is discussed. The act changed the way in which amendments to Canada\u27s constitution were made. Previously, the Imperial Parliament made the amendments

The Teaching of Procedure Across Common Law Systems

What difference does the teaching of procedure make to legal education, legal scholarship, the legal profession, and civil justice reform? This first of four articles on the teaching of procedure canvasses the landscape of current approaches to the teaching of procedure in four legal systems—the United States, Canada, Australia, and England and Wales—surveying the place of procedure in the law school curriculum and in professional training, the kinds of subjects that “procedure” encompasses, and the various ways in which procedure is learned. Little sustained reflection has been carried out as to the import and impact of this longstanding law school subject. Through a comparative approach, this series of articles explores what difference the approach a particular jurisdiction has chosen to adopt makes for legal education, legal scholarship, the practice of law and the profession, and to civil justice reform in our legal system. En quoi l’enseignement de la procédure civile modifi e-t-il les études juridiques, la recherche juridique, la profession d’avocat et la réforme de la justice civile? Ce premier de quatre articles sur l’enseignement de la procédure dresse le tableau de l’approche actuellement utilisée dans quatre systèmes juridiques – aux États-Unis, au Canada, en Australie, en Angleterre et au Pays de Galles – et se penche sur la place qu’occupe la procédure dans le programme des facultés de droit et dans la formation professionnelle, les matières qui constituent la « procédure » et les diverses façons d’apprendre la procédure. L’importance et l’incidence de cette matière traditionnelle des facultés de droit ont fait jusqu’ici l’objet de fort peu de réfl exion en profondeur. Par le biais d’une approche comparative, cette série d’articles examine en quoi l’approche adoptée dans ces pays modifi e chez nous les études et la recherche juridiques, la pratique du droit, la profession d’avocat et la réforme du système de justice civile

The Interlegality of Transnational Private Law

This article describes transnational private law as a decentralized and intermediate form of transnational governance that recognizes and manages the multiplicity of norms generated by plural normative systems in our contemporary world society. These include international and municipal state systems, nonstate social systems, and private ordering by parties. Consistent with an approach that views globalization as changing the nature of the sovereignty of states, the article draws on the rich tradition of private law, considered with its international dimensions, to find both a concrete example of and a model for understanding the complex role of the state in the plural normative orders of the “postnational constellation.” In this task, this article views private law understood in its international context as exemplary of an intermediate level of transnational governance

Investment provisions in trade and investment treaties: the need for reform

This repository item contains a policy brief from the Boston University Global Economic Governance Initiative. The Global Economic Governance Initiative (GEGI) is a research program of the Center for Finance, Law & Policy, the Frederick S. Pardee Center for the Study of the Longer-Range Future, and the Frederick S. Pardee School of Global Studies. It was founded in 2008 to advance policy-relevant knowledge about governance for financial stability, human development, and the environment.Nations of the world are currently negotiating a variety of significant trade and investment treaties that cover upwards of eighty percent of the world economy. The Trans-Pacific Partnership (TPP) would further integrate a number of Pacific-Rim nations; the Trans-Atlantic Trade and Investment Partnership (TTIP) would be a treaty between the United States and European countries. The United States and others are also negotiating major bilateral investment treaties (BITs) with China and India

The global cultural commons after Cancun: identity, diversity and citizenship

The cultural politics of global trade is a new and unexplored terrain because the public domain of culture has long been associated with national sovereignty. States everywhere have invested heavily in national identity. But in an age of globalization, culture and sovereignty have become more complex propositions, subject to global pressures and national constraints. This paper argues three main points. First, new information technologies increasingly destabilize traditional private sector models for disseminating culture. At the same time, international legal rules have become more restrictive with respect to investment and national treatment, two areas at the heart of cultural policy. Second, Doha has significant implications for the future of the cultural commons. Ongoing negotiations around TRIPS, TRIMS, GATS and dispute settlement will impose new restrictions on public authorities who wish to appropriate culture for a variety of public and private ends. Finally, there is a growing backlash against the WTO’s trade agenda for broadening and deepening disciplines in these areas. These issues have become highly politicized and fractious, and are bound to vex future rounds as the global south, led by Brazil, India and China flexes its diplomatic muscle

Transnational Private Regulatory Governance: Ambiguities of Public Authority and Private Power

The continuing proliferation of transnational private regulatory governance challenges conceptions of legal authority, legitimacy and public regulation of economic activity. The transnational law merchant or, lex mercatoria, is a case in point in this context, as it represents a laboratory for the exploration of “private” contractual governance in a context, in which the assertion of public or private authority has itself become contentious. The ambiguity surrounding many forms of today’s contractual governance in the transnational arena echoes that of the far-reaching transformation of public regulatory governance, which has been characteristic of Western welfare states over the last few decades. What is particularly remarkable, however, is the way in which the depictions of “private instruments” and “public interests” in the post-welfare state regulatory environment have given rise to a rise in importance of social norms, self-regulation and a general anti-state affect in the assessment of judicial enforcement or administration of contractual arrangements. The paper suggests the need to short-circuit and to read in parallel the justifications offered for a contractual governance model, which prioritizes and seeks to insulate “private” arrangements from their embeddedness in regulated market contexts, on both the national and transnational level

Taxing the Market Citizen: Fiscal Policy and Inequality in an Age of Privatization

Focusing on Canada, Philipps argues that recent efforts to revise important facets of the income tax system are best understood through the lens of privatization. By promoting personal responsibility, the tax code is contributing to the erosion of the ideal of social citizenship and replacing it with a new model of market citizenship

Markets and Sovereignty

The past few decades have witnessed the growth of an exciting debate in the legal academy about the tensions between economic pressures to commodify and philosophical commitments to the market inalienability of certain items. Sex, organs, babies, and college athletics are among the many topics that have received attention. The debates often have proceeded, however, as if they involve markets on one side and the state on the other, with the relevant question being the ways in which the latter can or should try to facilitate, restrict, or rely on the former. In this article, we approach the relationship between markets and sovereign control from a different perspective, and contemplate more radical versions of their relationship. What would it mean for governing authority itself to be market alienable? And what would it mean if the people—rather than the state—were the ones who set the prices and controlled the transfers? Could a ‘market for sovereign control’ contribute to welfare-enhancing changes in governance

The Challenge of Defining Unmet Legal Need

Research on unmet legal need in Australia is long overdue and this delay has been articulated in many spheres. Although there was significant work done on defining and studying the problems of access to justice in the 1970s and early 1980s, there has been little academic work done since.In June 1998, the Australian Senate Legal and Constitutional References Committee noted that there were inadequate data on the "unmet need" for legal aid.The same committee reported in 2004 that there had been no progress and restated the urgent need for reliable data on which to base government decisions. A number of other Australian organisations have acknowledged that research into unmet legal need should be undertaken as a matter of urgency. They include the Victorian Parliamentary Law Reform Committee, National Legal Aid,and the Law Council of Australia